Music: Madonna, I’m Breathless (1992)

1. Music: Madonna, I’m Breathless (1992) Coming Attractions Mon 4/16: Make-Up Class 8:00-8:55 am (here) Wed 4/18: Beatles & Grateful Dead Critiques Due Fri 4/20: Course Evaluations Mon 4/23: Make-Up Class 8:00-8:55 am (here) Wed 4/25: Closing Up

2. DQ113: Title Search with Grantor-Grantee Indexes Purchasing from Mr. Carroll. How do you begin?

3. DQ113: Title Search with Grantor-Grantee Indexes Purchasing from Mr. Carroll. • Check grantee index under Carroll going backward from present.You find record of deed: Byers  Carroll (1984). What now?

4. DQ113: Title Search with Grantor-Grantee Indexes Purchasing from Mr. Carroll. • Deed: Byers  Carroll (1984). • Check grantee index under Byers going backward from 1984.You find record of deed: Arias  Byers (1969). What now?

5. DQ113: Title Search with Grantor-Grantee Indexes Purchasing from Mr. Carroll. • Deed: Byers  Carroll (1984). • Deed: Arias  Byers (1969). • Check grantee index under Byers going backward from 1984.You find record of deed: U.S. Govt  Arias (1962).What now?

6. From Grantee Index: Byers  Carroll (1984). Arias  Byers (1969). U.S. Govt  Arias (1962). Check grantor index to see if Arias conveyed any interests between 1962 and 1969. You find nothing until Arias  Byers deed in 1969. What Next? DQ113: Title Search with Grantor-Grantee Indexes

7. From Grantee Index: Byers  Carroll (1984). Arias  Byers (1969). U.S. Govt  Arias (1962). Arias  Byers (1969). Check grantor index to see if Byers conveyed any interests between 1969 and 1984. You find easement granted to Electric Co. in 1971 & nothing else until Byers  Carroll deed in 1984. What Next? DQ113: Title Search with Grantor-Grantee Indexes

8. From Grantee Index: Byers  Carroll (1984). Arias  Byers (1969). U.S. Govt  Arias (1962). Arias  Byers (1969). Byers  Elec. Co. (1971) (Easement) Byers  Carroll (1984). Check grantor index to see if Carroll conveyed any interests between 1984 and the present PLUS check to see if Electric Co. released or transferred the easement. Nothing Additional. What Next? DQ113: Title Search with Grantor-Grantee Indexes

9. From Grantee Index: Byers  Carroll (1984). Arias  Byers (1969). U.S. Govt  Arias (1962). From Grantor Index: Arias  Byers (1969). Byers  Elec. Co. (1971) (Easement) Byers  Carroll (1984). Check all documents uncovered through index for content and references to unrecorded interests. DQ113: Title Search with Grantor-Grantee Indexes

10. Tract Indexes • Index transactions by location not names of parties • Much easier to use for most types of transactions • Exist almost everywhere privately; and as official public record in a few jurisdictions • Many states have rules based on grantor-grantee indexes even if public or private tract indexes exist

11. Shelter Rule (Notice Jurisd.) OA OB (BFP) A records • In a notice jurisdiction, B wins over A as a subsequent BFP even though A recorded first • Note that for A’s recording to serve as notice to B, it must have taken place prior to the time B purchases the land.

12. Shelter Rule (Notice Jurisd.) OA OB(BFP) A records BC Who wins A v. C? • The OA deed is recorded before C’s purchase so C is not a BFP.

13. Shelter Rule (Notice Jurisd.) OA OB(BFP) A records BC Who wins A v. C? • The OA deed is recorded before C’s purchase so C is not a BFP. • BUT: Shelter rule: Subsequent purchaser from BFP stands in shoes of BFP and defeats prior interest • even if not BFP • unless original grantor WHY?

14. Shelter Rule (Notice Jurisd.) OA OB(BFP) A records BC Protects title of a BFP from recording or adverse publicity that occurs subsequent to purchase. Otherwise, couldn’t sell, so victory over A worthless

15. Tattler Exclusive: Seller’s Friends Say Not Surprised. Buyers Confused, Angry: WhoWill Get the Land and Who Will Have to Chase After Otten? Otten Sells Land to Both Alexander and Bell; Flees to Cayman Islands

16. Shelter Rule (Notice Jurisd.) Otten  Alexander Otten  Bell (BFP) Massive Publicity on Slow News Day Bell  Creech (Actual Notice; Not BFP) Creech wins over Alexander to give value to Bell’s interest

17. CHAIN OF TITLE PROBLEMS Problems in way things are recorded or indexed that frustrate basic search. If significant enough: • Can mean no record notice • Can mean not “recorded” for purpose of race-notice

18. CHAIN OF TITLE PROBLEMS Problems in way things are recorded or indexed that frustrate basic search. Examples: (FYI; not tested) • Documents recorded out of usual order • Document refers to several lots w/o listing individually (all land owned by X) • Same person referred to by different name on later document • misspelling • name change or multiples

19. 1948 Grant to Elizabeth Taylor Where do you look in the grantor index going forward?

20. 1948 Grant to Elizabeth Taylor Where do you look in the grantor index? 1950 Elizabeth Taylor Hilton

21. 1948 Grant to Elizabeth Taylor Where do you look in the grantor index? 1952 Elizabeth Taylor Hilton Wilding

22. 1948 Grant to Elizabeth Taylor Where do you look in the grantor index? 1957 Elizabeth Taylor Hilton Wilding Todd

23. 1948 Grant to Elizabeth Taylor Where do you look in the grantor index? 1959 Elizabeth Taylor Hilton Wilding Todd Fisher

24. 1948 Grant to Elizabeth Taylor Where do you look in the grantor index? 1964 Elizabeth Taylor Hilton Wilding Todd Fisher Burton

25. 1948 Grant to Elizabeth Taylor Where do you look in the grantor index? 1975 Elizabeth Taylor Hilton Wilding Todd Fisher Burton Burton

26. 1948 Grant to Elizabeth Taylor Where do you look in the grantor index? 1976 Elizabeth Taylor Hilton Wilding Todd Fisher Burton Burton Warner

27. 1948 Grant to Elizabeth Taylor Where do you look in the grantor index? 1991 Elizabeth Taylor Hilton Wilding Todd Fisher Burton Burton Warner Fortensky

28. PROMISSORY SERVITUDES:TRADITIONAL ELEMENTS • Runyon v. Paley: Lot limited to residence only & not more than 2 residences; restriction terminates if area changes character • Davidson Bros.: Can’t put supermarket or grocery store on lot for 40 years

29. PROMISSORY SERVITUDES:TRADITIONAL ELEMENTS (1) with FLEETWOOD MAC

30. DQ114: INTENT TO RUN Generally: Fact Question • Can be explicit language in the covenant • Davidson Bros. “This restriction shall be a covenant attached to and running with the lands” • Runyon (burden only):“running with said land by whomsoever owned” • Can be inferred from circumstances

31. DQ114: INTENT TO RUN Runyon: Agreement was explicit about intent regarding the burden running, but not the benefit. What evidence did the court rely on to determine that the parties also intended the benefit to run?

32. DQ114: INTENT TO RUN Runyon: evidence that the parties intended the benefit to run? • Explicit intent to have burden run indefinitely suggests right to enforce also must run • Limit to residential use significantly affects value of nearby lots; suggests tied to land • Circumstances suggest concern with character of neighborhood • part of secluded parcel • she continued to live next door there & receive benefit

33. DQ114: INTENT TO RUN Runyon: evidence that the parties intended the benefit to run? • Court doesn’t mention, but note she died the year after the transaction. • Could argue that if she was old or very ill when provision was drafted, not much point in restricting just for herself .

34. DQ115: NOTICE • Actual Notice • Record Notice • Inquiry Notice

35. DQ115: NOTICE • Actual Notice: Fact Question • Conceded in Davidson Bros. • Record Notice • Inquiry Notice

36. DQ115: NOTICE • Actual Notice: Fact Question • Record Notice: Constructive Notice of Documents Properly Recorded • Agreement in Runyon was in records, so what was disputed? • Inquiry Notice

37. DQ115: NOTICE: Runyon Like Intent Issue: Ds claim that notice must include explicit reference to benefit running. Court says sufficient notice from: • Notice that burden intended to run; • Notice from records that lot carved from larger parcel part of which is retained by O Looks like trying to protect laymen by not insisting on technical requirements

38. DQ115: NOTICE • Actual Notice • Record Notice • Inquiry Notice: Actual or constructive notice of facts that suggest 3d party interest. • Can be on face of property; duty to inspect • Can be in documents in chain of title

39. DQ115: NOTICE • Actual Notice • Record Notice • Inquiry Notice: Strict duty to inquire • Need to inquire directly of persons with apparent claim; not grantor b/c incentive to lie • If don’t inquire • held to knowledge of 3d party interest. • can’t argue that inquiry wd have been futile

40. DQ115: NOTICE • Actual Notice • Record Notice • Inquiry Notice: Examples • Actual possession always is notice • can be residence or other regular use • if someone you don’t know on land: ask

41. DQ115: NOTICE • Actual Notice • Record Notice • Inquiry Notice: Examples • Actual possession always is notice • Other signs of use or ownership • paths: inquire of n-bors • signs of occasional use

42. DQ116-17: PRIVITY HORIZONTAL: Sufficient Relationship Betw. Original Parties? • Trad’l common law: needed consecutive estates • landlord-tenant • life estate & reversion • American jurisdictions allow mutual interest in same land (e.g. easement) • Most states allow grantor-grantee • both Runyon & Davidson fit here • Trend toward abolishing

43. DQ117: PRIVITY The comment to the Restatement (quoted on P895) says the requirement of horizontal privity “can easily be circumvented with a conveyance to a strawperson….” What does this mean? E.g., Dorothy and Glinda are neighbors. They agree to mutual restrictions on their lots (all paving must be yellow brick) and want them to be enforceable as real covenants. What do they do?

44. DQ117: PRIVITY Conveyance to a strawperson: Dorothy  Scarecrow (fee simple) Glinda  Scarecrow (fee simple) then immediately after & simultaneously: Scarecrow  Dorothy (fee simple with yellow brick covenant) Scarecrow  Glinda (fee simple with yellow brick covenant) Why is the availability of this approach significant?

45. DQ116: PRIVITY VERTICAL: RELATIONSHIP BETWEEN ORIGINAL PARTY TO THE TRANSACTION AND CURRENT PARTY TO THE DISPUTE • Traditionally needed same estate • Usually, grantor-grantee works (Davidson) • In landlord-tenant context, assignees but not sublessees in vertical privity with tenants • Some jurisdictions: Any legal successor

46. DQ116: PRIVITY VERTICAL: RELATIONSHIP BETWEEN ORIGINAL PARTY TO THE TRANSACTION AND CURRENT PARTY TO THE DISPUTE • In Runyon, why is vertical privity met as to Williams and not as to the Runyons? • If you were the lawyer for Mrs. Gaskins and she wanted the Runyons to be able to enforce the provision, what could you have done?

47. PROMISSORY SERVITUDES:TRADITIONAL ELEMENTS (2) With THE EAGLES

48. PROMISSORY SERVITUDES:IMPLIED FROM A COMMON SCHEME with the Temptations